Real estate and real estate development are always hot topics in New York, never more so that after a real estate developer won the presidency.  Politics notwithstanding, indemnification in real estate development is always pertinent, and in  Board of Mgrs. of the Norfolk Atrium Condominium v 115 Norfolk Realty LLC 2017 NY Slip Op 30348(U) February 23, 2017 Supreme Court, New York County Docket Number: 652529/16,  Judge Barry Ostrager does a great job of explaining the rules.

“As indicated earlier, one remaining issue is the request by G+P, Betro, and V & P to dismiss the indemnification claims asserted against them by the third-party plaintiffs. G+P and V & P also seek to dismiss Betro’s indemnification cross-claims against them. The principle of common law indemnification permits a vicariously liable party to shift all liability to the party whose negligence actually caused the loss. See, 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 (1st Dep’t 1999). However, “[s]ince the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine.” SSDW Co. v Fefdman-Misthopoulos Assoc., 151 AD2d 293, 296 (1st Dep’t 1989). Thus, to be entitled to indemnification, the party seeking indemnity “must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought … ” 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 (1st Dep’t 1999) (citations omitted). The moving third-party defendants argue that they may not be held vicariously liable for the alleged wrongs by the Sponsor, and that the Sponsor did not delegate exclusive responsibility to them for the duties that give rise tc:> the claims asserted by the plaintiff Board. Rather, it is alleged that the Sponsor itself participated, at least to some degree, in the alleged wrongdoing. The Sponsor argues in opposition. that the Board is, in fact, seeking to hold the Sponsor vicariously liable for the negligence of the architects and contractors and that the Sponsor itself committed no wrong as it did not perform the work at issue. While the evidence may ultimately prove otherwise, the pleadings contain sufficient allegations to withstand the motions to dismiss and allow discovery to proceed. The pleadings do allege, for example, that the Sponsor delegated to the third-party defendants the duty to properly perform the design and construction work at issue and that none of the damages are attributable to any fault, want of care or negligence by the Sponsor. The Court thus declines to dismiss the Sponsor’s indemnification claims based largely on the standard governing pre-answer motions to dismiss pursuant to CPLR §3211 (a)(7) for failure to state a cause of action, where the Court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference,. and determine only whether facts as alleged fit within any cognizable legal theory …. ” Leon v Martinez, 84 NY2d 83, 87-88 (citations omitted). And while indemnification would not lie for certain claims by plaintiff against the Sponsor, such as fraudulent misrepresentation and inducement, no need exists to
parse the claims at this time. Based on the same analysis, the Court declines to dismiss
Betro’s cross-claims at this time as the precise role played by Betro with respect to the
other third-party defendants and the degree of shared responsibility, if any, particularly
with respect to G+P, is in dispute. ”

 

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.